Harris v. Wingo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT DALE HARRIS,

Plaintiff,

v. Case No: 2:18-cv-17-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

KASEY P. WINGO,

individually, MICHAEL D.

CHAPMAN, individually, SCOTT

PEPIN, individually, and

ROSS ANTHONY, individually,

Defendants.

OPINION AND ORDER

This matter comes before the Court on the defendant Wingo’s

Motion for Summary Judgment (Doc. #112) filed on June 10, 2019.

Plaintiff filed a Response (Doc. #129) on June 24, 2019. For the

reasons set forth below, the motion is granted in part and denied

in part.

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004)(citing Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.

1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts”)). “If

a reasonable fact finder evaluating the evidence could draw more

than one inference from the facts, and if that inference introduces

a genuine issue of material fact, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

Qualified immunity provides “complete protection for

individual public officials performing discretionary functions

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th

Cir. 2012) (quotation omitted). A defendant claiming qualified

immunity must show that he acted “within the scope of his

discretionary authority when the allegedly wrongful acts

occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.

1991)). If that showing is made, then plaintiff must establish

“(1) that the facts, when construed in the plaintiff's favor, show

that the official committed a constitutional violation and, if so,

(2) that the law, at the time of the official's act, clearly

established the unconstitutionality of that conduct.” Singletary

v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015)(citation omitted).

It is undisputed that Deputy Wingo was acting within his

discretionary authority as a law enforcement officer at all

relevant times.

II.

Plaintiff Robert Dale Harris’s (Plaintiff) Amended Complaint

(Doc. #51) is the operative pleading. The Amended Complaint

asserts claims against Deputy Kasey P. Wingo, a Collier County

Sheriff’s Office deputy, for false arrest and excessive force under

42 U.S.C. § 1983 (Counts II, XVI); malicious prosecution under §

1983 (Counts III, VI, XVII); assault and battery under Florida law

(Counts XI, XIX); conspiracy to violate Plaintiff’s civil rights

under § 1983 (Counts XII, XX); and First Amendment retaliation

under § 1983 (Count XIII). Plaintiff’s claims against other

defendants are discussed in separate orders.

This case centers on two arrests, occurring on April 4, 2014

and December 16, 2016, respectively. The undisputed facts are as

follows:

A. The April 4, 2014 Arrest

On April 4, 2014, Plaintiff was repairing his friend Randy

Leon Sulwilcowski’s (Mr. Sulwilcowski) motorcycle which was

warehoused at a storage facility in Naples, Florida. (Doc. #112-

1, pp. 36-37.) Plaintiff finished working with Mr. Sulwilcowski

on the motorcycle at approximately 9:25 P.M.; the storage facility

had closed at 9:00 P.M. (Id. p. 43; Doc. #51, ¶ 28.) Plaintiff

then exited the storage facility through the front gate riding a

bicycle while wearing a backpack. (Doc. #112-1, p. 135.) As

Plaintiff exited the storage facility, Deputy Michael D. Chapman

(Deputy Chapman) arrived at the scene in his police cruiser and

approached Plaintiff. (Doc. #112-3, pp. 68-69.) Deputy Wingo

arrived at the scene in a separate vehicle while Deputy Chapman

was approaching Plaintiff. (Doc. #112, p. 4.)

The audio of most of1 Plaintiff’s interactions with Deputies

Chapman and Wingo was recorded on Deputy Chapman’s dashcam.2

During the entire interaction, Plaintiff straddled his bicycle

with his feet on the ground. (Doc. #112-3, p. 99.) As Deputy

Chapman approached Plaintiff, the following exchange ensued:

Deputy Chapman: “Robert, here’s the thing, do you

work in here?”

Plaintiff: “I am working for Randy, thank you.”

Deputy Chapman: “Okay, do you work inside this

place?”

Plaintiff: “Yeah, for today.”

Deputy Chapman: “Is there anybody than can confirm

that? Because you’re coming out of

a closed place. That’s what the

problem is.”

Plaintiff: “Listen, he just let me out.”

Deputy Chapman: “Okay, is he back there?”

Plaintiff: “Yeah, he’s still back there with

the generator running.”

1 Deputy Chapman did not activate his microphone until some

point after initiating contact with Plaintiff, so the audio of

Deputy Chapman’s initial interactions with Plaintiff was not

recorded. (Doc. #112, p. 3.)

2 Because Deputy Chapman’s police cruiser was parked facing

away from Plaintiff, the dashcam was unable to record video of the

interaction.

Deputy Chapman: “Relax, okay? I have a job I have to

do. You understand that? Okay,

there’s burglaries in these things

all the time. I see you come out

with a bicycle with a backpack,

okay, at 9:30 at night.”

(Chapman Dashcam Video, at 1:03-1:41.) Deputy Chapman then stated

to Plaintiff, “you’re being very abrasive right now, which makes

me think you were back there doing something wrong. Do you

understand that?” (Id. at 1:48-1:52.) Plaintiff then requested

the presence of Deputy Chapman’s supervisor, and Deputy Chapman

stated, “well, too bad, because that’s not going to happen.” (Id.

at 1:54-1:58.) Deputy Wingo asked Deputy Chapman if he “g[ot] his

ID yet,” and Deputy Chapman responded, “it’s Robert Price, I

think’s his last name. It’s Robert something.” (Id. at 2:17-

2:21.) In response to Deputy Chapman stating that his last name

is “Price,” Plaintiff stated, “no, it’s not.” (Id.) Deputy Wingo

then asked Plaintiff for his ID:

Deputy Wingo: “Let me see your ID, man.”

Plaintiff: “Just talk to 2008.”

Deputy Wingo: “I don’t give a shit about 2008. Let

me see your ID.”

Deputy Chapman: “He was coming out of here.

Everything’s closed.”

Plaintiff: “You know, you guys are harassing

me, you know.”

Deputy Wingo: “Let me see your ID, man.”

Plaintiff: “I have no ID.”

(Id. at 2:22-2:40.)

After Plaintiff stated that he “ha[d] no ID,” Deputy Chapman

asked Plaintiff which storage unit he was working in:

Plaintiff: “You know Rock ‘n’ Roll Randy?”3

Deputy Wingo: “What about him?”

Plaintiff: “That’s who I’m working for, thank

you.”

Deputy Chapman: “He owns a place back there? Because

last time I checked he was homeless.”

Deputy Wingo: “What’s your name, man?”

Plaintiff: “Robert.”

Deputy Wingo: “Robert what? Robert what?”

Plaintiff: “Hold on, I’m on the phone getting my

boss out. Thank you.”

(Id. at 2:41-3:22.) Plaintiff called Mr. Sulwilcowski on speaker

and stated, “Hey, Randy, come out to the gate and talk to these

officers, please.” Mr. Sulwilcowski said “okay” and that he was

“on [his] way.” (Id. at 3:35-3:47.)

After finishing the phone call, Plaintiff continued to

interact with Deputies Chapman and Wingo:

Deputy Wingo: “What’s your last name, Robert?”

Plaintiff: “Of the family of Harris, and I do

not consent to-”

3 “Rock ‘n’ Roll Randy” is Mr. Sulwilcowski’s nickname. (Doc.

#51, ¶ 27.)

Deputy Wingo: “Harris. H-A-R-R-I-S?”

Plaintiff: “If, if you want-”4

Deputy Chapman: “Sir, you do realize I have a valid

reason to get your ID? You failing

to produce your ID will land you in

jail. Do you understand that? Or if

you fail to identify yourself.”

Plaintiff: “I just don’t like being harassed,

that’s all.”

Deputy Wingo: “You’re not being harassed. I’m

trying to get your name and date of

birth, man.”

Plaintiff: “No, over there you had harassed

me.”

Deputy Wingo: “Look, what is your name?”

Plaintiff: “Have I committed a crime, sir?”

Deputy Chapman: “I am investigating a loitering and

prowling complaint, yes.”

Plaintiff: “From who? I have the right to face

my accusers, sir.”

Deputy Chapman: “Well, you’re facing them.”

Plaintiff: “Are you taking your wages under

false pretenses?”

(Id. at 3:38-4:38.)

Deputies Chapman and Wingo then forced Plaintiff off his

bicycle and onto the ground. During the arrest process, Deputies

4 The remainder of this statement is inaudible, as Deputy

Chapman spoke over Plaintiff at this point.

Wingo and Chapman used physical force, a Taser, and pepper spray

on Plaintiff. (Doc. #112, pp. 5-6; Doc. #129, pp. 4-5.)

Plaintiff was ultimately charged with three (3) counts of

battery on a police officer; one (1) count of assault on a police

officer; one (1) count of resisting an officer without violence;

and one (1) count of loitering and prowling. (Doc. #51, ¶¶ 59-

62; Doc. #112, p. 7.) On April 17, 2014, the State Attorney’s

Office filed a “Not Filing Charge” on all six counts. (Id.)

B. The December 16, 2016 Arrest

On December 16, 2016, Deputy Wingo stopped Plaintiff’s

vehicle after observing it being driven with an invalid license

plate.5 (Doc. #112, p. 7; Doc. #129, pp. 6-7.) Deputy Wingo had

received information that Plaintiff’s vehicle was involved in

transporting narcotics.6 (Doc. #112, p. 7; Doc. #129, p. 7.) After

initiating the traffic stop, Deputy Wingo approached Plaintiff and

the following interaction occurred and was captured on Plaintiff’s

in-car camera:

Deputy Wingo: “Hello, sir.”

Plaintiff: “One second, I’m calling my

attorney.”

5 Specifically, Plaintiff was driving a Ford vehicle on which

a license plate registered to a GMC vehicle was affixed.

6 Deputy Wingo believed that Plaintiff’s brother was using

Plaintiff’s vehicle to transport narcotics. (Doc. #112, p. 7;

Doc. #129, p. 7.)

Deputy Wingo: “I need your license, registration,

[and] insurance.”

Plaintiff: “Let me call my attorney.”

Deputy Wingo: “No, you need it now.”

(Plaintiff Video, at 3:17-3:24.) Deputy Wingo then attempted to

open the vehicle door, but Plaintiff pulled the door closed.

Deputy Wingo next opened the vehicle door and attempted to remove

Plaintiff from the vehicle. (Id. at 3:24-3:26.) As Deputy Wingo

entered the vehicle, Plaintiff lifted his knees, which prevented

Deputy Wingo from removing Plaintiff from the vehicle. (Id.)

Deputy Wingo then attempted to deploy his Taser on Plaintiff, but

Plaintiff grabbed the Taser and pushed it away. (Id. at 3:35-

3:38.) Deputy Wingo continued his attempts to subdue Plaintiff

with his Taser, but Plaintiff continued to resist Deputy Wingo’s

efforts. (Id. at 3:40-6:51.) Shortly thereafter, other deputies

arrived at the scene and assisted Deputy Wingo in removing

Plaintiff from the vehicle and placing him under arrest. (Id. at

6:52-9:47.)

Plaintiff was ultimately charged with one (1) count of assault

on a law enforcement officer; one (1) count of battery on a law

enforcement officer; one (1) count of resisting an officer with

violence; and one (1) count of resisting an officer without

violence. (Doc. #129-8, p. 8.) Plaintiff was held in jail for

several days, and the charges were later dismissed on January 17,

2014 when the State Attorney’s Office filed a “Not Filing Charge”

on all four counts. (Doc. #129, p. 8; Doc. #129-8, p. 8.)

III.

Deputy Wingo moves for summary judgment on all Counts asserted

against him. As to Plaintiff’s claims for false arrest, malicious

prosecution, and First Amendment retaliation, Deputy Wingo argues

he is entitled to summary judgment because he had probable cause

to arrest Plaintiff on both April 4, 2014 and December 16, 2016.

Deputy Wingo alternatively argues that even if he lacked probable

cause to arrest Plaintiff, he had arguable probable cause to arrest

Plaintiff and is thus entitled to qualified immunity as to those

claims.

As to Plaintiff’s claims for excessive force and assault and

battery, Deputy Wingo argues he is entitled to summary judgment

because his use of force was objectively reasonable. Deputy Wingo

alternatively argues that even if his use of force was “objectively

unlawful,” he is nonetheless entitled to qualified immunity. (Doc.

#112, p. 32.) As to Plaintiff’s civil conspiracy claims, Deputy

Wingo argues Plaintiff’s claims are barred by the intra-corporate

immunity doctrine. The Court will address each claim in turn

below.

A. The Claims Relating to the April 4, 2014 Arrest

(1) The False Arrest (Count II), Malicious Prosecution (Counts

III, VI), and First Amendment Retaliation (Count XIII)

Claims

Deputy Wingo argues he is entitled to summary judgment on

Plaintiff’s claims for false arrest, malicious prosecution, and

First Amendment retaliation because he had probable cause to arrest

Plaintiff for resisting an officer without violence on April 4,

2014. The existence of probable cause, Deputy Wingo correctly

asserts, defeats these causes of action.7 Deputy Wingo

alternatively argues that even if he lacked probable cause to

arrest Plaintiff, he had arguable probable cause to arrest

Plaintiff and is thus entitled to qualified immunity.

The threshold questions are whether Deputy Wingo lawfully

stopped and detained Plaintiff. The Court concludes that both the

stop and the detention were proper.

7 See Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th

Cir. 2004)(“The existence of probable cause at the time of arrest

. . . constitutes an absolute bar to a section 1983 action for

false arrest.”); Kjellsen v. Mills, 517 F.3d 1232, 1237 (11th Cir.

2008)(“Because lack of probable cause is a required element to

prove a § 1983 claim for malicious prosecution in violation of the

Constitution, the existence of probable cause defeats the

claim.”); Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019)(A

“plaintiff pressing a retaliatory arrest claim must plead and prove

the absence of probable cause for the arrest.”)

(a) Initial Stop Supported by Reasonable Suspicion

“Under the Fourth Amendment, a police officer generally may

lawfully detain an individual without a warrant if (1) there is

probable cause to believe that a traffic violation has occurred (a

traffic stop), or (2) there is reasonable suspicion to believe the

individual has engaged or is about to engage in criminal activity

(an investigative or Terry stop).” United States v. Gibbs, 917

F.3d 1289, 1294 (11th Cir. 2019). The Court examines “(1) whether

the officer’s action was justified at its inception -- that is,

whether the officer had probable cause or reasonable suspicion to

initiate the stop, and (2) whether the stop was reasonably related

in scope to the circumstances that justified it in the first

place.” Id. Here, only an investigative stop is at issue, since

there is no claim of any traffic infraction. “In resisting

[without violence] cases involving an investigatory detention, the

state must prove that the officer had a reasonable suspicion of

criminal activity.” A.R. v. State, 127 So. 3d 650, 654 (Fla. 4th

DCA 2013). Thus, the Court begins its analysis with whether the

initial stop was supported by reasonable suspicion.

“In appropriate circumstances, ‘police can stop and briefly

detain a person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that criminal

activity ‘may be afoot,’ even if the officer lacks probable

cause.’” United States v. Bishop, F.3d , 2019 WL 5090019,

at *3 (citations omitted). Reasonable suspicion exists if a police

officer has “a reasonable, articulable suspicion based on

objective facts that the person has engaged in, or is about to

engage in, criminal activity.” United States v. Powell, 222 F.3d

913, 917 (11th Cir. 2000). The officer “must be able to articulate

more than an inchoate and unparticularized [] hunch of criminal

activity.” Illinois v. Wardlow, 528 U.S. 119, 123–24

(2000)(citation and quotation omitted). In determining whether

reasonable suspicion exists, a court considers “the totality of

the circumstances from the perspective of a reasonable officer.”

United States v. McCoy, 259 F. App'x 264, 268 (11th Cir. 2007);

see also Bishop, F.3d , 2019 WL 5090019, at *11, *12.

Here, the totality of the circumstances established

reasonable suspicion for the deputy to stop Plaintiff on his

bicycle as he attempted to exit the closed storage facility at

night after hours. Deputy Chapman witnessed Plaintiff exiting the

storage facility at approximately 9:30 p.m. after the facility had

already closed. Plaintiff was riding a bicycle and wearing a

backpack. Deputy Chapman was aware that thefts occur at such

storage facilities. A reasonable officer could reasonably believe

Plaintiff was “engaged in, or [was] about to engage in, criminal

activity” inside the closed business. Powell, 222 F.3d at 917.

Therefore, neither Deputy Chapman nor Wingo violated Plaintiff’s

Fourth Amendment rights by stopping Plaintiff as he left the

storage facility.

(b) Scope and Duration of Stop

While the stop of Plaintiff on his bicycle was lawful, the

scope and duration of the resulting detention must also be

reasonable to comply with the Fourth Amendment. “Even if the

police have reasonable suspicion to make a traffic stop, they do

not have unfettered authority to detain a person indefinitely. The

detention is ‘limited in scope and duration.’” United States v.

Campbell, 912 F.3d 1340, 1350 (11th Cir. 2019)(citation omitted.)

“[I]t is well established that an officer may ask a suspect to

identify himself in the course of a Terry stop . . . .” Hiibel v.

Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S.

117, 186-87 (2004). The record clearly establishes that the scope

of the stop was reasonably related to the legitimate concerns which

prompted it, and that the resulting detention was reasonably short

in duration before escalating to an arrest. Thus, the Court finds

the scope and duration of Plaintiff’s stop was reasonable, and

therefore lawful.

(c) Existence of Probable Cause

While both the initial stop and the resulting detention were

lawful, probable cause must nonetheless have existed for the arrest

to have been lawful. “Probable cause to arrest exists . . . when

an arrest is objectively reasonable based on the totality of the

circumstances.” Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir.

2011)(citation and quotation omitted). This standard is satisfied

where “the facts within the collective knowledge of law enforcement

officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that

a criminal offense has been or is being committed.” Brown v. City

of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). The

Eleventh Circuit has recently stated:

“Because probable cause deals with

probabilities and depends on the totality of

the circumstances, it is a fluid concept that

is not readily, or even usefully, reduced to

a neat set of legal rules.” District of

Columbia v. Wesby, ––– U.S. –––, 138 S. Ct.

577, 586, 199 L.Ed.2d 453 (2018) (quotation

marks omitted). It “requires more than mere

suspicion, but does not require convincing

proof.” Bailey v. Bd. of Cty. Comm’rs, 956

F.2d 1112, 1120 (11th Cir. 1992); see Wesby,

138 S. Ct. at 586 (“It requires only a

probability or substantial chance of criminal

activity, not an actual showing of such

activity.”) (quotation marks omitted). All in

all, it’s “not a high bar.” Wesby, 138 S. Ct.

at 586.

Gill, as Next Friend of K.C.R. v. Judd, No. 17-14525, 2019 WL

5304078, at *6 (11th Cir. Oct. 21, 2019).

Plaintiff argues Deputy Wingo lacked probable cause to arrest

him for loitering and prowling, the offenses Deputies Wingo and

Chapman were initially investigating. But Deputy Wingo does not

assert probable cause for such offenses. Rather, Deputy Wingo

asserts probable cause for the offense of resisting an officer

without violence, a first-degree misdemeanor under Florida law.

See Fla. Stat. § 843.02. An arrest comports with the Fourth

Amendment if it is supported by probable cause for any offense.

See Elmore v. Fulton Cty. Sch. Dist., 605 F. App'x 906, 914 (11th

Cir. 2015)(“So long as the circumstances known to the officers,

viewed objectively, give probable cause to arrest for any crime,

the arrest is constitutionally valid even if probable cause was

lacking as to some offenses, or even all announced charges.”).

The arrest was therefore lawful if there was probable cause that

Plaintiff was resisting arrest without violence within the meaning

of Fla. Stat. § 843.02.8

The Florida statute provides that an individual commits the

offense of resisting an officer without violence when he

“resist[s], obstruct[s], or oppose[s] any [law enforcement]

officer . . . in the lawful execution of any legal duty, without

offering or doing violence to the person of the officer.” Fla.

Stat. § 843.02. “[T]o support a conviction for obstruction without

violence, the State must prove: (1) the officer was engaged in the

8 Deputy Wingo also asserts there was probable cause to arrest

Plaintiff for the Florida crime of refusing to provide

identification, citing Fla. Stat. § 901.151. (Doc. #112, p. 13.)

But this statute does not create a state criminal offense for

refusing to identify oneself to an officer when requested.

Additionally, the Florida loitering and prowling statute does not

criminalize such a refusal. Fla. Stat. § 856.021(2). In the

absence of another crime, the probable cause determination is

limited to the resisting without violence offense.

lawful execution of a legal duty; and (2) the defendant's action,

by his words, conduct, or a combination thereof, constituted

obstruction or resistance of that lawful duty.” C.E.L. v. State,

24 So. 3d 1181, 1185–86 (Fla. 2009). Deputy Wingo asserts that

both elements were satisfied in this case.

The first element of the resisting statute is clearly

satisfied. Deputies Wingo and Chapman were investigating

Plaintiff’s presence at a closed storage facility. Fla. Stat. §

901.151 provides that, when an officer has reasonable suspicion to

believe an individual is engaged in criminal activity, the officer

“may temporarily detain such person for the purpose of ascertaining

the identity of the person [] and the circumstances surrounding

the person's presence abroad which led” to the officer’s reasonable

suspicion. As the Court has found, the officers had sufficient

reasonable suspicion to justify the stop, and its scope and

duration were reasonable. “Knowing defiance of a lawful Terry

stop constitutes unlawful resistance without violence.” C.E.L. v.

State, 995 So.2d 558, 561 (Fla. 2d DCA 2008) (en banc), approved,

24 So.3d 1181 (Fla. 2009); B.M. v. State, 212 So. 3d 526, 528 (Fla.

2d DCA 2017).

Deputy Wingo contends that the second element is also

satisfied. Deputy Wingo asserts Plaintiff was resisting an officer

without violence because Plaintiff “questioned Deputy Chapman’s

authority, accused him of harassment, [] requested a supervisor,”

and “most important[ly] . . . refused to provide identification.”

(Doc. #112, p. 13.) Deputy Wingo asserts that the audio recording

of his interaction with Plaintiff confirms that Deputy Wingo asked

Plaintiff “for identification no less than five times without

success,” and that Plaintiff “never provided” his date of birth or

his last name’s spelling. (Id. p. 14.)

Some of the facts relied upon by Deputy Wingo are legally

insufficient to support a resisting without violence charge.

Plaintiff’s questioning of Deputy Chapman’s authority, accusation

of harassment, and request for the presence of a supervisor do not

constitute a violation of the Florida statute. See Davis v.

Williams, 451 F.3d 759, 767 (11th Cir. 2006)(“[A]sking to speak to

an officer's superior or [] asking for an officer's badge number

. . . do[es] not constitute obstruction of justice” under Florida

law.); DeRosa v. Sheriff of Collier Cty., Fla., 416 F. App'x 839,

840 (11th Cir. 2011)(“Florida courts have long held that criticism

cannot support a conviction for obstruction, even if the criticism

is insulting or defiant.”).

Deputy Wingo’s primary basis for probable cause – that

Plaintiff refused his request for identification - is unsupported

in the record. The audio recording from Deputy Chapman’s dashcam

does not support Deputy Wingo’s assertion that Plaintiff

repeatedly refused to identify himself. The audio recording begins

with Deputy Chapman stating, “Robert, here’s the thing, do you

work in here?” (Chapman Dashcam Video, at 1:03-1:07.) Later,

Deputy Chapman incorrectly recalled the last name given by

Plaintiff. Thus, in the non-recorded portion Plaintiff must have

identified himself when Deputy Chapman first encountered

Plaintiff. When Deputy Wingo arrived at the scene and asked

Plaintiff for his ID, Plaintiff informed Deputy Wingo that he

“ha[d] no ID.” (Id. at 2:22-2:40.)

Moreover, when Deputy Wingo asked Plaintiff for his last

name, Plaintiff provided that information. And when Deputy Wingo

spelled Plaintiff’s last name aloud, Deputy Chapman did not allow

Plaintiff to complete a response, but spoke over Plaintiff,

stating:

Sir, you do realize I have a valid reason to get your

ID? You failing to produce your ID will land you in jail.

Do you understand that? Or if you fail to identify

yourself.9

(Id. at 4:00-4:12.)

9 Deputy Wingo asserts that Plaintiff “d[id] not confirm the

spelling [of his last name], telling Deputy Wingo ‘he does not

consent.’” (Doc. #112, p. 4.) Deputy Wingo mis-reads the record.

Plaintiff clearly did not state he “does not consent” to confirming

the spelling of his last name. Rather, in response to Deputy Wingo

asking Plaintiff for his last name, Plaintiff stated, “Of the

family of Harris, and I do not consent to-”. (Chapman Dashcam

Video, 3:47-3:57.) Before Plaintiff completed that statement,

Deputy Wingo spoke over Plaintiff and stated, “Harris. H-A-R-R-I-

S?” (Id.) Thus, Plaintiff made the statement that he “do[es] not

consent” before Deputy Wingo made any reference to the spelling of

Plaintiff’s last name.

Plaintiff then stated he felt he was being harassed by

Deputies Wingo and Chapman, and Deputy Wingo stated, “You’re not

being harassed. I’m trying to get your name and date of birth,

man.” (Id. at 4:12-4:16.) The audio recording confirms that

Deputy Wingo had never asked Plaintiff for his date of birth, and

Plaintiff had already provided his first and last name to Deputy

Wingo. The audio recording further reflects that, although

Plaintiff already provided his first and last name to Deputies

Wingo and Chapman, Deputy Wingo again stated to Plaintiff, “Look,

what is your name?” (Id. at 4:19-4:21.) After Plaintiff responded

by asking if he had committed a crime and whether the Deputies

were “taking [their] wages under false pretenses,” Deputies Wingo

and Chapman forcibly removed Plaintiff from his bicycle. (Id. at

4:23-4:38.)

While Deputy Wingo was authorized to temporarily detain

Plaintiff and ascertain his identity and “the circumstances

surrounding [his] presence” at the storage facility under Fla.

Stat. § 901.151, Plaintiff has established facts showing an absence

of probable cause. Contrary to Deputy Wingo’s characterization,

the audio recording does not reflect that Plaintiff refused to

identify himself. Rather, the audio recording confirms that

Plaintiff identified himself to Deputy Chapman, corrected Deputy

Chapman when he stated Plaintiff’s last name was “Price,” informed

Deputy Wingo he “had no ID,” and provided his first and last name

to Deputy Wingo. Moreover, the record does not show Plaintiff was

requested to provide his date of birth and refused. The audio

recording confirms that neither Deputy Chapman nor Deputy Wingo

asked Plaintiff for his date of birth. After Plaintiff stated he

felt he was being harassed, the following interaction ensued:

Deputy Wingo: “You’re not being harassed. I’m

trying to get your name and date of

birth, man.”10

Plaintiff: “No, over there you had harassed me.”

(Chapman Dashcam Video, at 4:12-4:16.) As discussed above, Deputy

Wingo had never asked Plaintiff for his date of birth, and Deputy

Wingo’s assertion that he “g[ave Plaintiff] numerous chances to

provide his . . . date of birth without success” is refuted by the

recording. (Doc. #112, p. 5.) Further, consistent with § 901.151,

Plaintiff informed Deputy Wingo he was working at the facility for

Mr. Sulwilcowski, and called Mr. Sulwilcowski so Mr. Sulwilcowski

could speak to Deputies Wingo and Chapman and confirm that

Plaintiff was indeed working at the storage facility.

Viewing the facts in the light most favorable to Plaintiff,

the Court finds Plaintiff has shown a lack of probable cause to

arrest Plaintiff for resisting an officer without violence.

10 At this point, Plaintiff had already provided Deputy Wingo

with his first and last name.

Therefore, Deputy Wingo’s request for summary judgment on the basis

of the existence of probable cause is denied.

(d) Whether Deputy Wingo is Entitled to Qualified Immunity

Deputy Wingo alternatively argues that, even if he lacked

probable cause to arrest Plaintiff for resisting an officer without

violence, he had arguable probable cause to arrest Plaintiff and

is thus entitled to qualified immunity. The Court disagrees.

Although an arrest without probable cause “violates the

Fourth Amendment, this does not inevitably remove the shield of

qualified immunity.” Skop v. City of Atlanta, GA, 485 F.3d 1130,

1137 (11th Cir. 2007). Indeed, an officer who “make[s] an arrest

without probable cause [is] entitled to qualified immunity if there

was arguable probable cause for the arrest.” Kingsland v. City of

Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)(citation omitted).

Arguable probable cause exists “where reasonable officers in the

same circumstances and possessing the same knowledge as the

Defendant[] could have believed that probable cause existed to

arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.

2002)(citation and quotation omitted).

The arguable probable cause standard “is an objective one and

does not include an inquiry [into] the officer's subjective intent

or beliefs.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 735

(11th Cir. 2010)(citation omitted). Whether an officer possessed

arguable probable cause “depends on the elements of the alleged

crime and the operative fact pattern.” Id. (citation omitted).

Deputy Wingo asserts he had arguable probable cause to arrest

Plaintiff for resisting an officer without violence because

Plaintiff refused to “confirm the spelling [of his last name]” and

“give his date of birth.” (Doc. #112, pp. 8-9.) This is so,

Deputy Wingo argues, because it “is inherently unclear” what

identifying information a legally detained individual must provide

to a police officer under Fla. Stat. § 901.151. (Id. p. 19.)

Thus, Deputy Wingo asserts, “[i]t is [] unclear whether a first

and last name is alone sufficient under § 901.151.” (Id.)

The Court is unpersuaded by Deputy Wingo’s assertion that he

had arguable probable cause to arrest Plaintiff. The audio

recording does not support Deputy Wingo’s claim that Plaintiff

refused to spell his last name or to provide his date of birth

after being asked. As discussed supra, when Deputy Wingo spelled

Plaintiff’s last name aloud, Deputy Chapman spoke over Plaintiff

and did not allow him to respond. Additionally, the audio

recording confirms that Deputy Wingo never asked Plaintiff for his

date of birth; instead, after Plaintiff already provided his first

and last name and claimed harassment, Deputy Wingo declared,

“You’re not being harassed. I’m trying to get your name and date

of birth, man.” (Chapman Dashcam Video, at 4:12-4:16.) But Deputy

Wingo never asked for Plaintiff’s date of birth, but rather again

asked Plaintiff for his name, even though Plaintiff had already

provided that information to Deputy Wingo.

The Court concludes no reasonable officer “in the same

circumstances and possessing the same knowledge as [Deputy Wingo]

could have believed that probable cause existed to arrest”

Plaintiff for resisting an officer without violence. Ferraro, 284

F.3d at 1195. Indeed, the record establishes that Plaintiff

identified himself at least twice, explained his presence at the

storage facility, corrected Deputy Chapman when he stated his last

name was “Price,” and called Mr. Sulwilcowski to come to the

storage facility’s front gate to speak with Deputies Chapman and

Wingo. These facts do not support even arguable probable cause.

Deputy Wingo nonetheless argues that, “even without arguable

probable cause, there has been no showing that Deputy Wingo

violated clearly established law.” (Doc. #112, p. 20.) Deputy

Wingo reasons that “[w]hat constitutes sufficient ‘identification’

during an investigatory stop is unclear in Florida” and Deputy

Wingo is “thus entitled to qualified immunity for his decision to

arrest [Plaintiff] for failing to provide the information

requested.” (Id. p. 21.)

The law was clearly established that a police officer needs

probable cause for a warrantless arrest. The record simply does

not support Deputy Wingo’s assertion that Plaintiff “fail[ed] to

provide the information requested” or that Plaintiff refused

“numerous chances to provide his name and date of birth . . . .”

(Id. pp. 5, 21.) A court must “define the ‘clearly established’

right at issue on the basis of the specific context of the case.”

Tolan v. Cotton, 572 U.S. 650, 657 (2014)(citations and quotations

omitted). And at the time of Plaintiff’s arrest on April 4, 2014,

it was clearly established that an individual must actually

“disobey[] a command by members of law enforcement” in order to be

arrested for resisting an officer without violence. Zivojinovich

v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008). The Court thus

concludes Deputy Wingo is not entitled to qualified immunity “for

his decision to arrest [Plaintiff] for failing to provide the

information requested,” given that the record, viewed in the light

most favorable to Plaintiff, does not support this

characterization of events. (Doc. #112, p. 21.)

On this record, the Court finds sufficient evidence that

Deputy Wingo lacked probable cause or arguable probable cause to

arrest Plaintiff on April 4, 2014. Deputy Wingo’s motion is

therefore denied as to Plaintiff’s claims for false arrest (Count

II), malicious prosecution (Counts III, VI), and First Amendment

retaliation (Count XIII) relating to the April 4, 2014 arrest.

(2) The Excessive Force (Count II) and Assault and Battery

(Count XI) Claims

Deputy Wingo also moves for summary judgment on Plaintiff’s

claims for excessive force and assault and battery, arguing the

force he used to arrest Plaintiff was objectively reasonable in

light of Plaintiff’s resistance. Deputy Wingo alternatively

argues that, “even if the force [he] applied was objectively

unlawful,” he is nonetheless entitled to qualified immunity. (Doc.

#112, p. 32.)

A claim that a law enforcement officer used excessive force

in the course of an arrest is analyzed under the Fourth Amendment

and its objective reasonableness standard. Graham v. Connor, 490

U.S. 386, 395 (1989); Wilson v. Northcutt, 987 F.2d 719, 722 (11th

Cir. 1993).11 “The Fourth Amendment's freedom from unreasonable

searches and seizures encompasses the plain right to be free from

the use of excessive force in the course of an arrest.” Lee v.

Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)(citation omitted).

In determining whether an officer used excessive force in

effectuating an arrest, the Court considers such factors as “[1]

the severity of the crime at issue, [2] whether the suspect poses

an immediate threat to the safety of the officers or others, and

[3] whether he is actively resisting arrest or attempting to evade

11 Plaintiff’s claim for excessive force and his state-law

claim for assault and battery are analyzed under the same standard.

See Christie ex rel. estate of Christie v. Scott, 923 F. Supp. 2d

1308, 1328 (M.D. Fla. 2013)(“[T]he crux of a state-law assault and

battery claim against [] officers is whether a reasonable officer

would believe that this level of force is necessary in the

situation at hand.” (citation and quotation omitted)).

arrest by flight.” Graham v. Connor, 490 U.S. 386, 396

(1989)(citation omitted).

(a) Deputy Wingo’s Use of Force

The manner in which Plaintiff was subdued and arrested by

Deputies Wingo and Chapman is disputed, and Deputy Chapman’s

dashcam did not record the approximately five minute physical

altercation that ensued during Plaintiff’s arrest.12 Deputy Wingo

asserts his use of force was objectively reasonable because his

actions “were limited to physical strikes with his fists and knees”

in order to “overcome [Plaintiff’s] resistance and secure his

hands” and place him under arrest. (Doc. #112, p. 25.) Plaintiff,

however, testified at deposition that Deputy Chapman “pummeled

[him] to the ground” and Deputy Wingo straddled Plaintiff, held

him down, and punched and kneed Plaintiff in the head, while Deputy

Chapman tasered him and sprayed him with pepper spray. (Doc. #112-

1, pp. 148, 155.)

Viewing the facts in the light most favorable to Plaintiff,

a jury may reasonably determine that Deputy Wingo used excessive

force in arresting Plaintiff. Plaintiff testified he had his hands

around his head to protect himself after Deputy Wingo was “on top

12 Sergeant Amengual of the Collier County Sheriff’s Office

arrived at the scene after Plaintiff had already been subdued, and

his dashcam only captured video of the latter part of Plaintiff’s

arrest. Sergeant Amengual’s dashcam, however, did not capture

video of the portion of Plaintiff’s arrest that is in dispute.

of [him] beating [him]” – which Deputy Wingo asserts is an

indication that Plaintiff resisted his efforts to place Plaintiff

in handcuffs. (Id.) Under Plaintiff’s version of events, Deputy

Wingo mounted Plaintiff, held him down, and punched and kneed him

even though Plaintiff had not resisted arrest and posed no threat

to Deputies Wingo and Chapman. If true, such “gratuitous use of

force when a criminal suspect is not resisting arrest constitutes

excessive force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Cir. 2008)(citation omitted). Given the lack of a video recording

of this altercation (Deputy Chapman’s dashcam only recorded the

audio of Plaintiff’s arrest) and the inconclusive audio, these

conflicting accounts create an issue of material fact as to whether

Deputy Wingo’s use of force was objectively reasonable under the

circumstances.

(b) Clearly Established Law

Deputy Wingo argues that, “even if the force applied was

objectively unlawful,” it was not clearly established at the time

of Plaintiff’s April 4, 2014 arrest that the use of such force was

excessive. (Doc. #112, p. 32.) As set forth above, Plaintiff

alleges that although he had not resisted arrest, Deputy Wingo

mounted Plaintiff, held him down, and punched and kneed Plaintiff

in the head. At the time of Plaintiff’s arrest, it was clearly

established that such “gratuitous use of force when a criminal

suspect is not resisting arrest constitutes excessive force.”

Hadley, 526 F.3d at 1330 (citation omitted). It was similarly

clearly established at the time of Plaintiff’s arrest that an

officer uses excessive force by “kicking and beating” an arrestee

laying on the ground who “[a]t no point was [] fighting back or

attempting to escape.” Reese v. Herbert, 527 F.3d 1253, 1273 (11th

Cir. 2008). Accordingly, on this record, the Court cannot conclude

that Deputy Wingo is entitled to qualified immunity on Plaintiff’s

claims for excessive force (Count II) and assault and battery

(Count XI) relating to the April 4, 2014 arrest.

(3) The Civil Conspiracy Claim (Count XII)

Count XII is a civil conspiracy claim under Section 1983 which

alleges that Deputy Wingo conspired with other deputies to violate

Plaintiff’s constitutional rights on April 4, 2014. Deputy Wingo

argues he is entitled to summary judgment on Count XII because

Plaintiff’s claim is barred by the intra-corporate immunity

doctrine. The Court agrees.

As the Eleventh Circuit recently stated:

“A plaintiff may state a § 1983 claim for

conspiracy to violate constitutional rights by

showing a conspiracy existed that resulted in

the actual denial of some underlying

constitutional right.” Grider v. City of

Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir.

2010). A plaintiff attempting to state such a

claim must allege that “the defendants

‘reached an understanding’ to violate the

plaintiff’s constitutional rights,” id.

(quoting Bailey v. Bd. of Cty. Comm’rs of

Alachua Cty., 956 F.2d 1112, 1122 (11th Cir.

1992)), and that “an actionable wrong”

occurred, id. (quoting Bendiburg v. Dempsey,

909 F.2d 463, 468 (11th Cir. 1990)).

Worthy v. City of Phenix City , Alabama, 930 F.3d 1206, 1224 (11th

Cir. 2019). At the summary judgment stage, plaintiff must

establish the understanding and the actionable wrong.

Under the intra-corporate immunity doctrine, “a corporation

cannot conspire with its employees, and its employees, when acting

in the scope of their employment, cannot conspire among

themselves.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,

1036 (11th Cir. 2000). The intra-corporate immunity doctrine

specifically provides “that acts of corporate agents are

attributed to the corporation itself, thereby negating the

multiplicity of actors necessary for the formation of a

conspiracy.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261

(11th Cir. 2010)(citation and quotation omitted). The doctrine is

not limited to corporations, but also “applies to public entities

such as [a] [c]ity and its personnel.” Denney v. City of Albany,

247 F.3d 1172, 1190 (11th Cir. 2001)(citations omitted). The

Eleventh Circuit has recognized an exception to the doctrine when

the alleged conduct of the conspirators violates the federal

criminal code. Id. at 1263.

Here, all the conspirators alleged by Plaintiff are deputies

employed by the Collier County Sheriff’s Office.13 Further, the

subject of the alleged conspiracy involves functions within the

scope of the deputies’ employment as law enforcement officers.

See Grider, 618 F.3d at 1261 (“The scope-of-employment inquiry is

whether the employee police officer was performing a function that,

but for the alleged constitutional infirmity, was within the ambit

of the officer's scope of authority (i.e., job-related duties).”).

Thus, absent an exception, the intra-corporate immunity doctrine

applies in this case and bars Plaintiff’s conspiracy claim.

The Court disagrees with Plaintiff that the criminal

conspiracy exception applies in this case. Plaintiff has not

alleged or otherwise established that the deputies engaged in

conduct that violated the federal criminal code. Grider, 618 F.3d

at 1263; Swanson v. Scott, No. 2:17-CV-67-FTM-99MRM, 2017 WL

1134998, at *2 (M.D. Fla. Mar. 27, 2017)(finding the criminal

conspiracy exception inapplicable because there were no

“allegations of federal criminal code violations”); Prof'l LED

13 Plaintiff argues the deputies involved in the alleged

conspiracy “brought in a third-party who is not employed by the

Sheriffs Office, Ms. Wolin.” (Doc. #129, p. 20.) Plaintiff,

however, fails to establish any facts substantiating this

assertion and otherwise fails to describe Ms. Wolin’s role in the

alleged conspiracy or that she entered into an unlawful agreement

with the deputies. It is undisputed that Ms. Wolin had no

involvement in the events at the storage facility.

Lighting, Ltd. v. AAdyn Tech., LLC, 88 F. Supp. 3d 1356, 1372 (S.D.

Fla. 2015)(finding the criminal conspiracy exception inapplicable

where the conduct in the alleged conspiracy “d[id] not amount to

criminal activity in violation of a federal criminal statute.”).

Accordingly, the Court finds Plaintiff’s civil conspiracy claim in

Count XII is barred by the intra-corporate immunity doctrine.

B. The Claims Relating to the December 16, 2016 Arrest

(1) The False Arrest (Count XVI) and Malicious Prosecution

(Count XVII) Claims

Plaintiff also asserts claims against Deputy Wingo for false

arrest and malicious prosecution based on Deputy Wingo’s December

16, 2016 arrest of Plaintiff. Deputy Wingo argues he is entitled

to summary judgment on these counts because his arrest was

supported by probable cause of a violation of Fla. Stat. §

316.605(1), or at least arguable probable cause.

As discussed above, on December 16, 2016, Deputy Wingo

observed Plaintiff driving a vehicle with an invalid license plate

attached. While Plaintiff does not dispute that Deputy Wingo

observed Plaintiff driving his vehicle with an invalid license

plate, Plaintiff contends that Deputy Wingo lacked probable cause

to arrest Plaintiff for violating Fla. Stat. § 320.161 because

Deputy Wingo did not witness Plaintiff attach the invalid license

plate to the vehicle. Plaintiff is correct.

Fla. Stat. § 320.261 provides that an individual commits the

offense of driving with an invalid license plate when that person

“knowingly attaches to any motor vehicle or mobile home any

registration license plate, or who knowingly attaches any

validation sticker or mobile home sticker to a registration license

plate, which plate or sticker was not issued and assigned or

lawfully transferred to such vehicle . . . .” Deputy Wingo’s

observation of Plaintiff driving a vehicle with the wrong license

plate did not establish probable cause or arguable probable cause

to arrest Plaintiff for this second-degree misdemeanor. See Weaver

v. State, 233 So. 3d 501, 503 (Fla. 2d DCA 2017)(citing cases).

This observation, however, provided Deputy Wingo with

probable cause to initiate a lawful traffic stop of Plaintiff’s

vehicle for violation of Florida law. Florida law requires that

“[e]very vehicle, at all times while driven, stopped, or parked

upon any highways, roads, or streets of this state, shall be

licensed in the name of the owner thereof in accordance with the

laws of this state . . . and shall . . . display the license plate

or both of the license plates assigned to it by the state . . . .”

Fla. Stat. § 316.605(1)(emphasis added). “A violation of this

subsection is a noncriminal traffic infraction, punishable as a

nonmoving violation as provided in chapter 318.” Id. A non-

criminal traffic infraction can provide a basis to perform a lawful

traffic stop. State v. Arevalo, 112 So. 3d 529, 531 (Fla. 4th DCA

2013); State v. Y.Q.R., 50 So. 3d 751, 753 (Fla. 2d DCA 2010);

Baker v. State, 164 So. 3d 151 (Fla. 1st DCA 2015). Therefore,

Deputy Wingo properly stopped the vehicle driven by Plaintiff.

Given the proper traffic stop, Deputy Wingo was permitted to

compel Plaintiff to exit the vehicle. The Supreme Court has held

that an officer making a traffic stop may order both a driver and

passengers to get out of the car pending completion of the traffic

stop. Maryland v. Wilson, 519 U.S. 408, 415 (1997); Pennsylvania

v. Mimms, 434 U.S. 106 (1977).

Following Wilson, this Court has consistently

held that “[d]uring a lawful traffic stop,

officers also may take steps that are

reasonably necessary to protect their personal

safety ... including requiring the driver and

passengers to exit the vehicle ‘as a matter of

course.’” United States v. Spoerke, 568 F.3d

1236, 1248 (11th Cir. 2009) (emphasis added)

(citation omitted) (quoting Wilson, 519 U.S.

at 410, 117 S.Ct. at 884); see also, e.g.,

Terrell v. Smith, 668 F.3d 1244, 1252 (11th

Cir. 2012).

Gibbs, 917 F.3d at 1294–95. It is undisputed that Plaintiff

refused to comply with this lawful direction, and physically

resisted the officer. Deputy Wingo had ample probable cause to

arrest Plaintiff for the refusal and resistance. Accordingly,

because Deputy Wingo’s December 16, 2016 arrest was supported by

probable cause, Deputy Wingo’s motion is granted as to the claims

for false arrest (Count XVI) and malicious prosecution (Count

XVII). Kingsland, 382 F.3d at 1226; Kjellsen, 517 F.3d at 1237.

(2) The Excessive Force (Count XVI) and Assault and Battery

(Count XIX) Claims14

Plaintiff also asserts claims for excessive force and assault

and battery for Deputy Wingo’s use of force in effectuating the

December 16, 2016 arrest. Plaintiff contends that Deputy Wingo

used excessive force on December 16, 2016 because it was not

objectively reasonable for Deputy Wingo to enter Plaintiff’s

vehicle and ultimately forcibly remove him from the vehicle.

Deputy Wingo, however, argues his use of force was reasonable

because (1) Plaintiff’s vehicle was “thought to be involved with

smuggling narcotics”; and (2) Plaintiff ignored Deputy Wingo’s

request for his identification and “then attempted to make a call

on his cellphone.” (Doc. #128, p. 28.)

The Court agrees that Deputy Wingo’s use of force was

objectively reasonable under the circumstances of the proper

vehicle stop and Plaintiff’s resistance to following a lawful

direction from the officer. First, as discussed supra, Deputy

Wingo had probable cause to stop Plaintiff for driving with an

invalid license plate and probable cause to arrest for resisting,

and “the law permits some use of force in any arrest for even minor

offenses.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 739–

40 (11th Cir. 2010).

14 As noted supra, Plaintiff’s claims for excessive force and

assault and battery are analyzed under the same standard.

Second, Plaintiff’s actions would lead a reasonable officer

to believe Plaintiff “pose[d] an immediate threat.” Graham, 490

U.S. at 396. As noted earlier, Deputy Wingo had received

information that Plaintiff’s vehicle was involved in transporting

narcotics, and when Deputy Wingo approached Plaintiff’s vehicle,

Plaintiff ignored Deputy Wingo’s request for his license and

vehicle registration information but instead attempted to make a

phone call. Under these circumstances, the Court finds it was

objectively reasonable for Deputy Wingo to attempt to enter

Plaintiff’s vehicle by opening the vehicle’s door.

After Deputy Wingo attempted to enter the vehicle to remove

Plaintiff from the vehicle, Plaintiff resisted Deputy Wingo by

pulling the door closed and lifting his knees, which prevented

Deputy Wingo from entering the vehicle. Deputy Wingo then

attempted to subdue Plaintiff with his Taser, but Plaintiff

continued to resist Deputy Wingo’s efforts by trying to grab the

Taser and pushing it away. The Court finds this continued use of

force was also objectively reasonable under the circumstances

because a reasonable officer under such circumstances would

believe Plaintiff posed an immediate threat to their safety, given

the facts surrounding the initial traffic stop and Plaintiff’s

escalating physical resistance. See e.g. Draper v. Reynolds, 369

F.3d 1270, 1278 (11th Cir. 2004)(The “use of [a] taser gun to

effectuate [an] arrest . . . was reasonably proportionate to the

difficult, tense and uncertain situation [the officer] faced in

[a] traffic stop” where the suspect “repeatedly refused to comply

with [the officer’s] verbal commands.”).

Accordingly, under the totality of the circumstances, the

Court finds Deputy Wingo’s use of force was objectively reasonable.

Deputy Wingo is thus entitled to summary judgment on Counts XVI

and XIX.

(3) The Civil Conspiracy Claim (Count XX)

Plaintiff also alleges a civil conspiracy claim as to the

December 16, 2016 arrest, asserting that Deputy Wingo conspired

with other deputies to violate Plaintiff’s constitutional rights

on December 16, 2016. For the same reasons discussed supra, the

Court finds Plaintiff’s civil conspiracy claim is barred by the

intra-corporate immunity doctrine.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. #112) is

GRANTED IN PART AND DENIED IN PART.

2. The motion is GRANTED as to Counts XII, XVI, XVII,

XIX, and XX.

3. The motion is DENIED as to Counts II, III, VI, XI, and

XIII.

4. The Clerk shall withhold the entry of judgment until the

conclusion of the case.

DONE AND ORDERED at Fort Myers, Florida, this 5th day of

November, 2019.

Z tkicok

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record